Winter 2008/09: The contents of the amended Narcotics Act

It is called a partial revision, but it is actually a comprehensive amendment to the Narcotics Law. We present the changed points, compare them with the current regulation and also explain the unchanged basics.

On November 30, the voters approved the partial revision of the Narcotics Law (NarcA). Thus, this law has been completely plowed up. We have taken the trouble to compile the now applicable paragraphs from the old text and the amended articles. The partial revision will come into force on 1.7.2011.

Our article takes up the most important points of the new law text and explains the formulations in the law. These apply to THC, but of course also to many other illegal substances. Finally, we briefly summarize the key points.

[Art. 1] Five points define the purpose of this law. First, the NarcA requires the promotion of abstinence, second, it wants to regulate the availability of psychoactive substances. There is already the first contradiction - because originally the law wanted to regulate the handling of such substances, since we can not do without them (especially in the medical field - just think of an operation without anesthetic!). A large part of this law also includes regulations on how doctors, pharmacists, dentists and veterinarians obtain the necessary anesthetics and how they must store them. These parts of the Narcotics Law are not dealt with in this article - after all, such regulations are only of interest to special professionals. For all others, the same applies: Handling these substances is “unauthorized” and therefore illegal. And here the goal is abstinence. But besides this unauthorized handling, there is also a large area of authorized handling. No hospital, no dental practice, no pain patient can do without narcotics. So abstinence is a foreign body in this law. The third point is to protect people, the fourth is to protect public order, and finally, the law is to combat criminal activity. Of course, these three points are pure wishful thinking - narcotics are consumed precisely to protect oneself from pain and to have pleasant experiences. And drug-related crime is just created by the illegalization of certain substances. Prohibition, which is ultimately what we are talking about here, has obviously failed, but is to be continued in an intensified form.

[Art. 1 a] Drug policy is to be based on four pillars: prevention, therapy and reintegration, harm reduction and survival assistance, and control and repression. After the four-pillar policy has been applied without any legal basis since the mid-1990s, it is now being given a legal basis. A right to intoxication, a right to be able to determine one's own consumption of narcotics as a responsible person, is sought in vain in this law.

[Art. 2] Illegal psychoactive substances are now grouped into six categories. First, the law lists narcotics. These are to be dependence-producing substances of the effect types morphine, cocaine and cannabis. Then come the psychotropic substances: amphetamines, barbiturates, benzodiazepines and hallucinogens. This distinction is also obviously false. While amphetamines and cocaine have very similar effects and problems and would belong in one category, cannabis is certainly not a narcotic in the classical sense. Substances are raw materials such as plants and mushrooms. Then follow preparations (“ready for use”), precursors, and auxiliary chemicals. [Art. 2 a] The Federal Department of Home Affairs FDHA shall then issue a specific list of these substances. This ordinance EDI has not yet been published. Probably the EDI will define any substances with more than 0.3% THC as narcotics in the sense of the law. This will eliminate the need for proof of law enforcement agencies against hemp plants. The special term “hemp herb for the production of narcotics” is now history - only the THC content of a plant or a substance decides whether they are illegal or not. And no longer the intended use.

[Art. 3 e] Here the possibility is created to allow narcotics for the treatment of persons addicted to narcotics. This is logical nonsense: First you make certain drugs illegal; people take them anyway; they don't get problems primarily because of the substances, but because of the repression; and then you offer these people those narcotics (under expensive medical supervision) for consumption, which you had forbidden them in the first place… It would be simpler, of course, if everyone could decide for themselves what they want to consume and the state only intervenes when someone causes problems. But this law is miles away from such a policy, which puts the responsible people in the center. Heroin prescription was, of course, the main driving force behind this partial revision. It is now definitively anchored in law (previously it was patched into the old NarcA twice, each time for five years). Now, in principle, other illegal substances (such as cocaine or cannabis) can also be used to treat people addicted to narcotics. Whether there is the political will to do so, however, remains to be seen. But a legal basis for this now exists.

[Art. 3 h] As before, authorities of any kind must report users of illegal substances to the road traffic authorities if they fear that they pose a danger to traffic. At misdemeanor in road traffic, of course, the Road Traffic Act with its de facto zero tolerance in the THC area continues to apply. And whether someone's driver's license should be revoked is still decided by the road traffic authorities based on the facts on record (driving under the influence of drugs, regular consumption/suspicion of addiction - see also our articles on this subject at Legalize it!)

[Art. 8] The list of prohibited narcotics includes four classes of substances. First the smoky opium, then the heroin, followed by the LSD and now new [Art. 8 d] “narcotics of the effect type cannabis” (formerly: “hemp herb for the production of narcotics and the resin of its glandular hairs (hashish)”). So here again the intended use of hemp herb is defined as irrelevant - only the list of the DHA decides (probably with the definition of “more than 0.3% THC”) whether a hemp product is an illegal narcotic or not. This is clearly a simplification of criminal prosecution, thus a tightening of repression.

[Art. 8 5] Again, the NarcA allows itself a logical somersault: First, these four groups are defined in such a way that they “may neither be cultivated, imported, manufactured nor placed on the market”, but then the possibility is defined that the Federal Council may permit these actually totally prohibited substances by means of exceptional licenses if it is a matter of scientific research, drug development or if it is a matter of limited medical use. Especially the last point, the limited medical use, is extended in the new version of this law to all four “totally” prohibited narcotics (previously this was only possible for heroin and LSD). Thus, opium and cannabis products can now also be used medically. However, this positive part of NarcA is put into perspective by the fact that it is probably only a very restrictive authorization. So it will hardly be possible to just go and buy some hashish at the pharmacy when you have a headache, but it is rather a matter of allowing terminally ill patients to swallow some THC a few months before they pass away. The exact interpretation of this new possibility is still open - it depends on how much pressure patients and their doctors will put on it. It will also depend on the pharmaceutical industry whether it invests in such drugs and finally on the Federal Office of Public Health whether it grants the necessary permits restrictively or willingly.

[Art. 19 1] Pretty much everything is prohibited (except for doctors and their patients, who have their own rules): Cultivating, manufacturing, producing, storing, shipping, transporting, importing, exporting, carrying out, disposing of, prescribing, procuring, placing on the market, possessing, keeping, acquiring, obtaining, financing, arranging financing, publicly soliciting consumption, or announcing opportunities for acquisition or consumption. Even the institution meeting for these activities is prohibited. Thus, all these acts are basically illegal misdemeanor. If the police and the judiciary find that someone has committed such acts, a punishment will follow (for the first time, for example, 1,000 francs fine and 10 daily fines (amount depending on income, between 30 and 3,000 francs per daily fine), as well as an entry in the criminal record. The maximum penalty is three years imprisonment. (Only consumption is not mentioned here, it follows below).

[Art. 19 2] If someone endangers the health of many people with his actions, or acts as a member of a gang, or achieves a large turnover (according to the Federal Court 100,000 francs) or a substantial profit (10,000 francs) or, and this is a novelty, traffics in narcotics in or around training centers for young people, this is a serious case. Here, the minimum penalty is one year imprisonment. That can then go up to 20 years, especially for repeated offenses. What exactly constitutes trafficking “in the immediate vicinity” of training centers (one meter, 100 meters?) is a matter for the courts to decide.

[Art. 19 a 1] The unauthorized consumption of narcotics is also punishable. However, the old rule remains that consumption and the preparatory acts necessary for it (all the activities we listed above under “prohibited unauthorized handling”) constitute a contravention (and not a misdemeanor). The punishment for such contraventions is fine (for example, 150 francs fine and in addition various writing, delivery and other fees, with fines becoming higher if someone is repeatedly punished - this without entry in the criminal record). [Art. 19 a 2] The NarcA even talks about the fact that in minor cases the proceedings can be discontinued or a penalty can be waived. Instead, the court may also issue a warning. However, this possibility, which has existed for a long time, is only used in very few cantons and is simply ignored by most courts. [Art. 19 b] Furthermore, there is the provision that there is no punishability if one prepares a small amount of a narcotic drug for one's own consumption or gives it away free of charge to enable simultaneous and joint consumption. Newly, however, impunity only applies if the other person is over 18 years of age. With these two elements, the courts could already largely decriminalize the use of THC today, without any legalization. However, the will of the responsible authorities is unfortunately lacking for this.

[Art. 19 bis] Offering, supplying and making available narcotics to under-18s is now a very punishable offense: the range of punishment is up to three years' imprisonment. Such behavior is therefore a misdemeanor, with all the consequences mentioned above. And this even if it is only a matter of passing on a joint. Especially the term of offering is fuzzy: Is already the consumption of illegal narcotics in the presence of young people such a crime, or “only” the concrete passing on of a joint? The courts will have to clarify this. The same applies to making drugs available: Are parents already liable to prosecution if their offspring steal something illegal from them? Of course, these regulations were intended to combat the evil dealers. But in all likelihood it will not be them who will be affected, but other young people (and possibly their THC-consuming parents). Because when young people smoke a joint together, they are of course passing illegal narcotics on to under-18s - and are thus making themselves extremely liable to prosecution. The following situation will be very special in the future: If a young person passes a joint on to an adult, the handover is not punishable. If then this adult returns the joint, he makes himself very punishable (up to three years imprisonment), because he passes narcotics to a young person. Again we see that our parliamentarians do not understand anything about the real processes - or deliberately write absurd regulations into the law.

[Art. 136 StGB] Another text has been appended to the partial revision, which amends the existing Criminal Code: Whoever gives or provides alcohol or other dangerous substances to a child under the age of 16 commits a misdemeanor (range of punishment up to three years imprisonment). However, this does not apply generally (as in the case of illegal narcotics), but only if the quantity involved is “such as to endanger health”. Alcohol and tobacco are not affected by this partial revision.

[Art. 28] The criminal prosecution remains a matter for the cantons. This leads to the great differences in the amount of fines imposed on users (from the discontinuation of proceedings, to fines in the amount of 50 francs, to fines (incl. ancillary costs) of up to 1,000 francs). The (Swiss) Federal Supreme Court explicitly gives the cantonal courts great freedom in choosing and structuring the punishment. This is because our federalist system leaves punishment primarily to the cantonal authorities.

At present, there is no text that would exactly reflect the amended NarcA. There is the text of the old law and the text with the changes of this partial revision. If you want to get an exact overview, you have to put together, as we have done, the old passages that remain in force with the changed parts of the text. You are welcome to copy these 16 A3 pages in our office and read them yourself. Or you can wait until the definitive text is posted on www.admin.ch, Bundesgesetze, Systematische Rechtssammlung (currently the old law is still there). The ordinances pertaining to the amended law will also be available here later. All texts concerning narcotics can be found in the Systematic Collection of Laws under the number 812. The date of entry into force of this revised law and the adaptation of the ordinances belonging to it is still open, but it will probably happen in the first half of 2009.

There are, as we mentioned in the text, various points that are open to interpretation, so where the courts have yet to decide what applies. We still collect all documents related to THC&Law and file them clearly (fines, penalty notices, protocols, court decisions, injunctions, media reports). So we are very happy if you send us such documents (anonymized if you like). The more individual information we get, the more rounded our whole picture of repression against THC in Switzerland will be. Because in the end, repression is not decided in the text of the law, but in the tens of thousands of fines and court decisions that are handed down every year for dealing with THC. (By the way: For offenses committed before the entry into force of this partially revised NarcA, the old NarcA, as we have presented it in our Shit happens 6 , applies under certain circumstances).

A comprehensive presentation of the entire legal situation of THC in Switzerland will be provided in the future by our THC Wiki. You are welcome to contribute to this. And in the seventh edition of our legal aid brochure Shit happens (this edition should be published around the end of 2009) we will summarize the central points in an updated way. In addition, we continue to offer our personal legal information (by phone, mail or preferably at a meeting). For members this is free of charge, you are welcome to make an appointment.

It cannot be stressed enough: Anyone who produces, buys, possesses and then consumes hash and weed on their own is committing a contravention. The penalty for this is usually a fine in the amount of a few hundred francs (including fees). There is no entry in the criminal record. Who gives away only half a gram, commits a misdemeanor. The range of punishment here is up to three years imprisonment, with entry in the criminal record. So: better own a kilo for yourself than give away 0.1 gram!

Whoever gives hash and weed for simultaneous consumption free of charge (one gives a joint in the round or throws up a piece so that someone builds a joint) is not punishable if it is a minor amount of hash or weed (“minor” is however a matter of interpretation of the court). But this is only true if adults are involved. If it has juveniles involved, you are guilty of a misdemeanor (see left)! (The consumption of the individuals can be punished as contravention ).

In minor cases, the proceedings may be discontinued. Or a penalty may be waived. Or, instead of a fine, a warning can be issued. Unfortunately, these good regulations in NarcA are hardly used. Even if they were listed in the voting booklet to present the hemp initiative as unnecessary! It would need courageous judges, who would use these possibilities - for example with the self-cultivation of some plants on the balcony and generally with the consumption by adults.

Until now, there were two terms regarding cannabis in NarcA: On the one hand, hashish (always prohibited), on the other hand, hemp herb, which was only prohibited if it served the production of narcotics. This proof was always difficult for the authorities to provide. After the partial revision, there is only one term: narcotic of the effect type cannabis. This now includes hemp plant, hemp herb, hemp flower or hashish. Central will be the still open definition in the regulation (probably more than 0.3% THC).